MSHA’s Renewed Enforcement Effort: Is the Third Time a Charm?

If Adopted, The New PPL Could Amend The MSHA Program Policy Manual, Dramatically Changing Workplace Exam Practices.

By Ross Watzman, Jackson Lewis P.C.

On Aug. 5, 2015, following the death of three miners in separate incidents in Nevada, North Dakota and Virginia, the Mine Safety and Health Administration (MSHA) announced that it is stepping up enforcement efforts and intensifying outreach and education nationwide. This third attempt follows two previously failed attempts to stop an alleged trend showing an increased number of fatalities in the metal/non-metal sector of mining. MSHA kicked off the renewed enforcement effort on Aug. 10.

During the Aug. 5 conference call with industry stakeholders, Assistant Secretary of Labor for Mine Safety and Health Joseph A. Main expressed his concern over the number of recent deaths. He stated that, “[i]n the past month alone, there have been five fatalities in the metal and nonmetal industry. Not since 2002 have three miners died in a single day in this mining sector. We cannot – we will not – accept this turn of events. We extend our deepest sympathies to the families of the miners who died in these tragic accidents.”

The following incidents all occurred on Aug. 3, 2015:

A loader operator was engulfed by a stockpile failure while standing outside his vehicle at a construction sand and gravel mine in North Dakota.

A miner at an underground gold ore operation in Nevada was killed when he was struck by mobile equipment.

A plant operator was buried under tons of sand and stone dust when a silo collapsed at a Virginia quarry.

MSHA has launched investigations into the causes of each of these fatalities.

In response to this situation, Secretary Main announced that, “the agency will begin beefed-up inspections with a focus on violations commonly associated with mining deaths, and federal inspectors will emphasize ‘walk and talks’ with miners and operators to disseminate information on fatalities and best practices for preventing them.” Secretary Main also called on operators to conduct more rigorous workplace safety examinations and assure that individuals performing them are competent. He reemphasized a Program Policy Letter published by MSHA on July 22, in which the agency attempted to clarify the requirement for workplace examinations. If adopted, the new PPL could effectively amend the MSHA Program Policy Manual, dramatically changing workplace exam practices and what MSHA considers a violation. MSHA suggested that: (1) supervisors, rather than rank-and-file miners, conduct such examinations as a best practice; (2) inspections must include areas accessed “infrequently” or only during maintenance: (3) those who perform exams must receive task training; and (4) it is “Best practice” to describe conditions found during exams even though the current regulation only requires that operators keep “[a] record that such examinations were conducted.” 30 CFR §§ 18002(b).

Perhaps most importantly, the agency has decided to boost its enforcement resources by reassigning 17 coal inspectors to the metal/non-metal sector as well as hiring 21 more metal/non-metal inspectors. However, this reallocation of resources creates a new subset of complications. The most notable complication being that coal mines and metal/non-metal mines are subject to different standards and prone to different problems.

Thus, coal mine inspectors may not be fully qualified to inspect metal/non-metal mines due to the dramatic differences in mining practices and geologic conditions. Additionally, MSHA’s coal mine inspectors may not possess the up-to-date knowledge of health and safety standards, MSHA policies or procedures, or current mining technology needed to perform a proper inspection of an aggregate mine.

As a result, it is highly likely that either severe problems will go undetected or inconsequential problems will be unnecessarily emphasized. If MSHA actually plans to reassign inspectors, they must also ensure that the inspectorate is provided adequate training to properly evaluate dynamic metal/non-metal mining conditions. An MSHA inspector who does not complete the annual training should not be permitted to inspect.

Overall, this systematic increase in enforcement is conspicuous considering MSHA’s announcement on Aug. 11 that the “Recent Pattern of Violations reforms by MSHA led to significant improvements in mine safety, culture change.” As indicated by the agency, “[t]he Pattern of Violations reforms … have been ‘real game changers’ in protecting miners and promoting a culture focused on safety and health in mines across the nation.”

MSHA recently conducted its third POV screening, under a rule revised in January 2013, which added to reforms the agency made in 2010. During the screening, MSHA found only one of the nation’s approximately 13,600 mines – a coal operation – warranted further review, the fewest number of both coal and metal and nonmetal mines identified for additional scrutiny since the 2010 reforms.

Upon completion of the review, no coal or metal and nonmetal mines met the criteria for further consideration of a POV notice. The POV reforms sent a message that chronic violator behavior would no longer be tolerated. That message translated into a dramatic reduction in the number of mines with chronic violation records,” said Secretary Main.

If the POV reforms have indeed lead to significant improvements as indicated by MSHA, what is the rationale for increased enforcement? The industry agrees that one fatality is one too many, and that these recent occurrences need to be addressed. However, increased enforcement and moving inspectors from the coal sector to the metal/non-metal sector may not be the answer. We should insist on more and better training of all inspectors, both new and experienced.

The training MSHA now provides to inspectors hardly seems consistent, uniform or well-received. Higher standards, proper training and certification will maintain and improve the quality of MSHA’s inspectorate and enhance safety in mines. Moreover, operators need to take it upon themselves to remain attentive to the background of the inspector and educate the inspector on current operations. Operators must also be especially vigilant for citations based on inapplicable coal standards, and challenge these citations when warranted. The failure to do so may result in the unfounded imposition of countless additional requirements.